The dangers of judicial pecking
By Reverend Dr. Carl Jackson
Jul 1, 2022
at 7:07 p.m.
This article is part of a symposium on the Court decision in Dobbs v. Jackson Women’s Health Organization.
Cari Jackson is director of spiritual care and activism for the Religious Coalition for Reproductive Choice. She is an ordained minister in the United Church of Christ and earned a JD and Ph.D. in Christian social ethics.
Throughout my life I have observed scriptural selection used as a strategy by Christian religious leaders to control the moral behaviors and lives of religious followers. Scripture selection is a methodical process of reading a passage out of context, misapplying it, ignoring other passages that offer important insight into the meaning of the text, and then framing certain passages in a way that runs counter to the intent of justice and liberation in the gospel.
It’s the same process the Supreme Court now uses with the Constitution. To understand how judicial selection works, let me start with sociologist Pierre Bourdieu’s analysis of symbolic power and misrecognition. According to Bourdieu, there is a form of political maneuvering within groups that reflects their divergent interests and minimizes overt power struggles by emphasizing “symbolic power”.
An example of the use of such symbolic power is reflected in the assertion of the majority opinion: “Women are not devoid of electoral or political power. It should be noted that the percentage of women who register to vote and vote is consistently higher than the percentage of men who do. This strategy intentionally overlooks the reality of women’s political power in a context where legislators are predominantly male. Absent from this reference to symbolic power is the reality of a historical pattern of economic disparity between women and men that often hampers the resources that female voters can mobilize.
For Bourdieu, language is used to obscure or promote a “misunderstanding of individual and/or collective interests in the social relations of a given social system”. In other words, language is used to distract and/or disguise very real agendas and interests, “leaving others in this social system to make choices and engage in activities based on misunderstandings” . In common parlance, it’s a sleight of hand strategy. By elevating women’s symbolic political power, the Court has now left it to those who are politically, economically and otherwise marginalized to struggle with limited resources within a social system designed to ignore, marginalize, control their bodies and their work. . This is especially true for poor people, people of color, people with disabilities, sexual minorities and immigrants.
Another example of Judge Samuel Alito’s misrecognition is the assertion that the decision does not take a position on whether or when a fetus has legal rights. Alito writes, “According to the dissent, the Constitution requires states to deem a fetus to be devoid of even the most basic human right – to live – at least until an arbitrary point in the pregnancy has passed. Nothing in the Constitution or in the legal traditions of our Nation authorizes the Court to adopt this “theory of life”. On the contrary, this decision establishes a “theory of life” which invites States to confer legal rights on a fetus and to withdraw the legal rights of pregnant women.
Another example of cherry picking, symbolic power and misunderstanding is the assertion of the majority opinion that deer “relyed on an erroneous historical account; he paid great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution. Since the majority were unable or unwilling to recognize the direct applicability of the Constitution to abortion rights, I offer three direct meanings.
Meaning #1 – Unlisted Rights
The Constitution aims to include more than the enumerated rights. To understand the full significance of the Constitutional Preamble requires a contextual reading in light of the 9th Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or denigrate others held by the people.” The majority’s assertion that the right to abortion care is not included in the Constitution runs counter to the authors’ intent to include enumerated and unenumerated rights in order to promote well-being. general and to guarantee freedom. Moreover, the importance of expanding rights was recognized even in the Colonial Act of 1620 of the Massachusetts Bay Colony. The editors wrote, we “enact, constitute and frame such just and equal laws, ordinances, acts, constitutions and offices, from time to time, as we shall deem most proper and convenient for the general good of the Colony” . These framers, as did the framers of the Constitution, recognized that they could not sufficiently enumerate all the rights that would be necessary for the general welfare of all.
Meaning #2 – Interstate Privileges and Immunities
To ensure freedom of interstate privileges, immunities, travel, and commerce, Article 4, Section 2 of the Constitution states that “the citizens of each state are entitled to all the privileges and immunities of citizens in the several states”. overturning deer and Casey, majority opinion poured an accelerant into an already unleashed interstate political storm. Despite the suggestion that “the rights concerning contraception and same-sex relations are inherently different from the right to abortion because the latter (as we have pointed out) involves only that which deer and Casey called “potential life,” the stage is now set for established law to become legislated again, state by state. In its judicial selection, this majority opinion completely ignores “right to privacy” as an inherently common context for contraception, abortion, same-sex and interracial relationships.
Meaning #3 – religious freedom
The First Amendment states that “Congress shall make no law respecting the establishment of any religion, or prohibiting the free exercise thereof.” Although the amendment lists constraints on Congress, when taken as a whole, the Constitution must understand that religious freedom must be protected through judicial and legislative processes at all levels of government. As James Madison wrote in 1785, “The religion then of every [person] must be left to the conviction and conscience of each [person]; and it is everyone’s right [person] to exercise it as these may dictate… It is inalienable, because the opinions of [individuals]dependent only on proofs envisioned by their own mind cannot follow the dictates of others[s].” Understanding the intersection of reproductive freedom and religious freedom, the Religious Coalition for Reproductive Choice emphasizes, “Good politics empowers people of all religions to follow their own beliefs and consciences in their own lives. This majority opinion significantly hampers the religious freedom of people who can seek abortion care and make other reproductive decisions consistent with their own religions.
The constitutional pursuit of a more perfect union remains clear. We must be vigilant to recognize and challenge judicial picking that violates fundamental principles of justice and freedom.